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Guilty, lawyers decide
Attorneys slam legal software, but some advocates say it can be useful
Milwaukee Journal Sentinel - November 9 1999

By Stanley A. Miller

Computers can make it easier for people to take more control over their lives by using software and the Internet to deal with things they used to pay professionals to do, such as personal finance and tax returns.

But finances are one thing and legal advice is another, and some attorneys here are concerned about people getting guidance from a little lawyer in a box. Even the companies that publish legal self-help software, while they defend their products, admit they aren't for everyone.

Ross Kodner, a lawyer and president of Microlaw, a law technology consulting firm in Milwaukee, says that self-help legal programs are a serious threat to people who would trust their computers instead of hiring legal counsel.

"Consumers can get into a tremendous amount of trouble, and they find that it costs them more to clean up the mess they've made than if they'd taken care of it correctly in the first place," Kodner said.

Self-help legal software includes law encyclopedias that create wills, living trusts and power-of-attorney documents, and all of it can lead users to think they've gotten all their bases covered when instead there are vulnerabilities in their legal actions.

For example, a real estate closing might not be documented correctly because the software didn't include the latest court decisions that affect the law. Heirs to an estate might find themselves tied up in probate court, which can be unpleasant and expensive, because there's a problem with a will.

"The law is fluid, and things are constantly changing," Kodner said. "Are people in a position to know all the latest legal developments? Some might get lucky, but a lot of people are going to screw it up."

Kodner said that attorneys aren't allowed to go from state to state practicing law without licenses, yet legal software providing similar services is sold unchecked and unregulated.

"This type of software constitutes an unauthorized practice of law, and that's illegal," he said.

Tom Watson, spokesman for the State Bar of Wisconsin, said that although the organization has not received any complaints from residents about legal software, it recently formed a multidisciplinary study committee that will look into professionals such as accountants and real estate agents giving legal advice, and it will look at the use of self-help legal software, too.

"It's one of the many issues the bar is concerned about," Watson said. "There has been a proliferation of this stuff. We're not saying that all of it is necessarily bad, but there may be some that don't pass legal muster."

"The real issue here is, what is the practice of law?" said Tom Shriner, an attorney with the Foley & Lardner law firm and chairman of the multidisciplinary committee. "Historically, drawing up a will is practicing law. I think there's a legitimate public interest in whether this software is any good.

"For now, this self-help legal software is governed by the state law dealing with the unauthorized practice of law. Unless somebody really gets hurt by it, there really isn't any interest on the part of district attorneys to prosecute."

Jennifer Spoerri, spokeswoman for Nolo Press, which is a book and software publisher in Berkeley, Calif., said that good legal software is designed to deal with simple issues.

"We are very careful about telling people what they can and cannot do with our products," she said. "We give them options, and we always encourage people to seek out an attorney for complex legal issues."

Kodner of Microlaw said that there's no such thing as a simple legal issue.

"That's an absolute fallacy," he said. "Situations tend to explode, and these programs can lure people into a false sense of security."

Legal software ran afoul of a government committee in Texas investigating the unauthorized practice of law in April 1997. The panel targeted programs published by Nolo Press and other software makers. A lawsuit from the committee led to a ban of software made by Parsons Technology called Quicken Family Lawyer in April 1999.

The ban against the software was lifted, and the committee dropped its investigation of Nolo Press after Texas Gov. George W. Bush signed an amendment in July exempting self-help legal products from regulations on the unauthorized practice of law.

Spoerri said that since the company started making legal software in 1985, it has not received any complaints from customers who felt its programs did not meet their expectations.

Nolo programs such as Will Maker and Living Trust Maker are created by teams of lawyers and reviewed by attorneys in every state, she said. The programs, which cost $35 to $45, use a step-by-step "interview" process to create customized legal documents.

"We try to stay away from things so complicated that it might give people real problems," she said. "We don't want to confuse anyone."

"This kind of software is part of a growing trend, like doing your own taxes," she said. "What better people to make these decisions but the people themselves?"

Stephen Elias, an author, editor and attorney with Nolo, said that the dispute with Texas was a case of lawyers not having enough faith in people to make their own decisions.

"I don't think every program out there is safe, just like every lawyer out there isn't safe," he said. "But with this software, you have a lot of attorneys looking at it, and all of the stuff we do states the limitations up front."

Elias said that legal software appeals to self-reliant people, such as professionals and people who run their own businesses who want to take care of their own affairs.

"Are people always better off using an attorney? No," he said. "But they have to be a little savvy" to use legal software, he said. "There's a level where people have to self-diagnose their problems."

Elias said that lawyers' opposition to self-help legal software is a combination of professional self-interest and concern for people who might make a mistake using it.

"It's very typical for lawyers to respond this way," he said. "They are acting on the idea that it couldn't work, and they are saying that people need to be protected from themselves. I tend to think people should have a choice.

"Lawyers from very early on are told that they are smarter and better than everyone else. "You come out of law school believing you're superior. It's part of the training, and it creates a kind of elitism. Most attorneys truly believe the law should be left to the lawyers."

And while some attorneys here make vague references to saving clients from the mistakes they've made with legal software, Jim Haney, spokesman for the state attorney general's office, said that the state has not received any complaints about these types of programs.

Complaints have not shown up on the radar screens of large consumer groups, either, including the Consumer Federation of America and Consumers Union -- which is the non-profit publisher of Consumer Reports -- according to representatives from both groups.

In fact, a consumer and legal reform group in Washington, D.C., called HALT supports self-help legal software and published a book titled "Do-it-Yourself Law: HALT's Guide to Self-Help Books, Kits and Software."

HALT gives high marks to software such as Kiplinger's Home Legal Advisor '98, Quicken Family Lawyer and several Nolo products for being accurate and comprehensive and for giving users disclaimers about the software.

"For so many years, attorneys have had a monopoly on their profession, and now people have more options," said Goldie Heidi Gider, a spokeswoman for HALT. "It's also a dangerous tool. Whenever you empower people, there is the opposite side because you are providing people with information. They just need to be careful."